Billings and May v. Russell

• Citation: 23 Pa. 189
• Parties: Billings and May versus Russell.
• Decision Date: 01 May 1854
• Court: United States State Supreme Court of Pennsylvania

23 Pa. 189

Billings and May versus Russell.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Tioga county.

Cone, for plaintiff in error.—It was, inter alia, contended that any defect in the proceeding before the justice was cured by the defendants' appearance: 2 Comstock 110; 4 Barr 296.

The judgment was not void, and the justice had jurisdiction. A stranger to such proceedings had no right to object to them collaterally.

Irregularity in the affidavit and bond should have been taken advantage of by motion to quash the attachment: 1 Morris 54. An attachment, if sufficient on its face, is a justification to the officer serving it, although it issued on an insufficient affidavit: 24

Wendell 485; 2 Lutw. 935; 5 Wend. 170; 4 W. & Ser. 191; 10 Watts 101. Creditors and terre tenants may attack a judgment collaterally for fraud or collusion, but on no other ground: 9 Barr 89; 4 Harris 21; 7 Barr 257. They may avoid a fraudulent judgment for a pretended debt, but cannot abate an erroneous judgment for a real debt: 5 W. & Ser. 473; 1 Troubat & Haly 569. A judgment of a court of competent jurisdiction is never to be treated as a nullity. The only question was that of ownership, which should have been submitted to the jury.

Ryan and Jessup, for defendant in error.—Proceedings under the Act of 1842 are in derogation of the common law, and are to be strictly pursued: 10 Watts 121. The affidavit should state with precision the cause for issuing it: 1 Miles 75; 3 Watts 144. There should have been two sureties in the bond: 4 Rawle 382. The affidavit did not recite the matters required by the statute, nor did the bond, and they were nullities: 3 Cowen 206. The proceeding was void, and was examinable in a collateral proceeding: 1 Harris 128. The jurisdiction of the justices being of a limited character, the facts which confer jurisdiction should appear on the record, or the proceeding is void: 10 Watts 118; 1 Peters 36; and the question of jurisdiction may be examined into in a collateral proceeding: 3 Cranch 331; 9 Wheaton 549; 13 Johnson 444; 5 Hill 285; 14 Mass. 461; 11 Pick. 441; 16 Vermont 246; 24 Maine 186; 10 Conn. 526; 1 Smith's Cases 703-710; 8 Howard 497; 5 Barr 428; 7 Id. 48, 136. A sale of property on a void judgment passes no title: 10 Watts 118.

The opinion of the Court was delivered by BLACK, C. J.

This was trespass for taking the plaintiff's horse on an execution against another person. Evidence was given to support and to contradict the allegation that the horse had been sold by the present plaintiff to the defendant in the execution. But the Court took all the evidence on that point away from the jury, and directed a verdict in favor of the plaintiff, on the sole ground that the execution was void. It was issued by a justice of the peace upon a judgment in attachment under the act of 1842. The affidavit was irregular, and so was the bond; and although the plaintiff appeared at the return day of the attachment and made no objection, the Court held that the judgment and execution gave no title to property sold under them.

It is a rule, to which there is no exception, that when a judgment is given by a court or judge having jurisdiction of the subject-matter, its regularity cannot be inquired into in a collateral proceeding. If the justice was wrong in issuing this attachment, and if the defendant did not waive the error by appearing, still nobody but the defendant himself had a right to complain of it and even he could...